Citation Nr: 0113871
Decision Date: 05/17/01 Archive Date: 05/23/01
DOCKET NO. 99-23 797 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Entitlement to an increased disability rating for post-
traumatic stress disorder (PTSD), currently evaluated as 70
percent disabling.
ATTORNEY FOR THE BOARD
Robert C. Scharnberger, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1963 to
December 1967.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from an October 1999 rating decision of the
Nashville, Tennessee, Department of Veterans Affairs (VA)
Regional Office (RO), which confirmed a 50 percent rating for
PTSD. A September 2000 rating action increased the
evaluation to 70 percent from May 1999, the date of receipt
of his claim.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's claim for an increased
evaluation has been obtained by the RO.
2. The competent evidence reveals that the veteran's PTSD is
manifested by sleep impairment; suicidal ideation;
impaired impulse control (such as unprovoked irritability
with periods of violence); and an impairment in the
ability to establish and maintain effective relationships.
3. The competent evidence does not show total occupational
and social impairment, due to such symptoms as: gross
impairment in thought processes or communication;
persistent delusions or hallucinations; grossly
inappropriate behavior; persistent danger of hurting self
or others; intermittent inability to perform activities of
daily living (including maintenance of minimal personal
hygiene); disorientation to place; memory loss for names
of close relatives, own occupation, or own name.
CONCLUSION OF LAW
The criteria for a disability evaluation in excess of 70
percent for PTSD have not been met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. § 4.130, Part 4, Diagnostic Code
(DC) 9411 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
The veteran is seeking an increased rating for his PTSD,
claiming that it should be rated at least 80 percent
disabling.
On November 9, 2000, the President signed into law the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat 2096 (2000) (to be codified as amended at
38 U.S.C. §§ 5102, 5103, 5103A, and 5107). This law rewrites
the "duty to assist" provisions of 38 U.S.C. §§ 5100-5107,
to eliminate the well-grounded claim requirement, and
requires the Secretary to provide additional assistance in
developing all facts pertinent to a claim for benefits under
title 38 of the United States Code.
The Board finds that the RO has met its duty to assist the
veteran in the development of this claim under the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000). By virtue of the Statement of the Case and the
Supplemental Statement of the Case issued during the pendency
of the appeal, the appellant and was given notice of the
information, including medical evidence, necessary to
substantiate the claim. The RO made reasonable efforts to
obtain relevant records adequately identified by the veteran,
in fact, it appears that all evidence identified by the
veteran relative to this claim has been obtained and
associated with the claims folder. The veteran has had
several VA examinations for PTSD, and all treatment records
that have been identified have been obtained. Therefore, the
Board finds that he is not prejudiced by appellate review.
See Bernard v. Brown, 4 Vet. App. 384 (1993).
In evaluating the severity of a particular disability, it is
essential to consider its history. Schafrath v. Derwinski,
1 Vet. App. 589 (1991); 38 C.F.R. §§ 4.1 and 4.2 (1999).
However, where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, see 38 C.F.R. § 4.2, the regulations do
not give past medical reports precedence over current
findings. Francisco v. Brown, 7 Vet. App. 55 (1994).
Disability evaluations are determined by the application of a
schedule of ratings that is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155 (West 1991). Percentage
evaluations are determined by comparing the manifestations of
a particular disorder with the requirements contained in the
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can practically be
determined, the average impairment in earning capacity
resulting from such disease or injury and their residual
conditions in civilian occupations. 38 U.S.C.A. § 1155;
38 C.F.R. § 4.1 (1999).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1999).
Finally, in deciding claims for VA benefits, "when there is
an approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant."
38 U.S.C.A. § 5107(b) (West 1991).
II. Evidence
The veteran's service medical records show that he was
admitted to a field hospital in August 1966 under heavy
sedation after being involved in an attack where a Vietnamese
woman and child were killed. The veteran has also described
seeing a friend killed by a grenade and having to carry the
remains to the helicopter for evacuation. The veteran was
hospitalized for what was first called an anxiety disorder
but the diagnosis was later changed to combat fatigue. After
treatment, the veteran returned to active duty.
The veteran filed a claims seeking service connection for
PTSD in 1985 and 1990 but did not appear for an examination
and the claims were not rated. In October 1996, the veteran
again filed a claim seeking service connection for PTSD. A
May 1997 VA examination revealed that the veteran was having
difficulty sleeping, was having difficulty with interpersonal
relationships, has exhibited startle reflex and feelings that
he is back in Vietnam. He indicated that he had not sought
treatment for his problems. He did go to a Vet Center
briefly for counseling and took over the counter medications.
He reported becoming easily angry. The examiner provided a
diagnosis of PTSD and a GAF score of 55 which indicates
moderate symptoms or moderate impairment in social,
occupational, or school functioning.
The veteran's PTSD was rated as 30 percent disabling in a
rating decision dated in August 1997.
In April 1998, the veteran filed a claim seeking an increase
in the disability evaluation for his PTSD.
In June 1998, the appellant underwent a VA examination for
PTSD. The appellant reported difficulty sleeping, difficulty
with interpersonal relationships, difficulty working more
than 10-15 hours a week because he doesn't like being around
people, irritability, and poor anger management. He was
casually dressed, well-groomed, and well-oriented. There was
no evidence of suicidal ideation, memory impairment, or
psychosis. The examiner assigned a GAF score of 45, which
indicates serious symptoms, or serious impairment in social,
occupational, or school functioning.
Based on this evidence, the RO granted an increased
disability rating to 50 percent for the veteran's PTSD,
effective April 8, 1998.
In May 1999, the veteran again filed a claim seeking an
increase in the disability rating for his PTSD.
In August 1999 the veteran underwent a VA examination for
PTSD. The examiner noted the veteran was working about 3
days per week at jobs he could do alone because he disliked
being around others. The veteran does not eat out, shop, or
spend time with others. He does not attend church or
socialize with friends. He denied being violent but did
acknowledge difficulty controlling his anger. The veteran
reported difficulty sleeping, nightmares, flashbacks, and
intrusive combat memories. The veteran was experiencing
persistent exaggerated startle response, irritability,
concentration impairment, hypervigilance and sleep
disturbance. The veteran's speech was normal, there was no
evidence of delusions, hallucinations, or suicidal ideation.
He did show a short-term memory loss consistent with PTSD.
The veteran's judgment and insight were fair. The examiner
found that overall, the veteran's symptoms had not changed
from 1998 and assigned a GAF score of 45. It was estimated
that the degree of impairment from PTSD was unchanged over
the past year.
The RO confirmed and continued the veteran's disability
rating for PTSD at 50 percent.
The veteran appealed and submitted additional evidence. The
veteran's wife gave a statement in October 1999 where she
indicated that the veteran has not been working and has
become violent at times and has severe difficulty controlling
his anger. She stated that the veteran does neglect his
appearance and has talked about suicide. She repeated this
testimony on a VA form 21-4138 dated in November 1999, where
she again indicated that the veteran has exhibited violence
and is unable to work or relate to other people. A May 2000
statement from her indicates that the veteran has attempted
suicide.
VA outpatient treatment notes from May 1999 indicate that the
veteran's PTSD symptoms are worsening. A VA PTSD screening
report in November 1999 indicated the veteran was exhibiting
passive suicidal ideation, indicating that he thought about
death approximately 4 times a week and "not caring whether
he lived or died". Both the veteran and his wife indicated
instances of extreme anger on the part of the veteran
including shoving and throwing things at his wife.
A March 10, 2000 VA PTSD examination indicated a normal
appearance, normal speech, and behavior. His dress and
hygiene were adequate. There was no indication of homicidal
or suicidal ideation, and no disturbance of mood or thought
processes. The veteran did report difficulty sleeping,
having flashbacks, nightmares, decreased energy, frequent
headaches, and a loss of interest in his surroundings. The
veteran was oriented to place and time, his memory was
intact, his judgment and insight were adequate. The
diagnosis was moderate PTSD.
A June 2000 VA examination report noted a diagnosis of
moderate PTSD and indicated that the GAF was 45. It was
added that symptoms of the disorder severely affect the
veteran.
Based on the above evidence, the RO granted an increase to 70
percent for the veteran's PTSD, effective May 25, 1999.
Because this is not the highest possible rating, this appeal
continued.
III. Analysis
The veteran contends, in essence, that a disability rating in
excess of 70 percent is warranted for his service-connected
PTSD.
A 70 percent disability rating is warranted for PTSD when
there are "deficiencies in most areas, such as work, school,
family relations, judgment, thinking, or mood, due to such
symptoms as: suicidal ideation; obsessional rituals which
interfere with routine activities; speech intermittently
illogical, obscure, or irrelevant; near-continuous panic or
depression affecting the ability to function independently,
appropriately and effectively; impaired impulse control (such
as unprovoked irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships.". 38 C.F.R. § 4.130, DC
9411 (2000).
A higher rating, of 100 percent, requires disability more
closely reflecting "gross impairment in thought processes or
communication; persistent delusions or hallucinations;
grossly inappropriate behavior; persistent danger of hurting
self or others; intermittent inability to perform activities
of daily living (including maintenance of minimal personal
hygiene); disorientation as to time or place; memory loss for
names of close relatives, own occupation, or own name." Id.
In this case, after review of all the evidence of record, the
Board finds that a rating in excess of 70 percent is not
warranted. The veteran is experiencing difficulty with work
and social and family relationships. Despite his denials to
the examiners, the Board finds credible evidence that the
veteran has expressed suicidal ideation. His wife's
statements, and the November 1999 screening report both
indicate that the veteran has considered suicide and he
acknowledges as much to the screening examiner in November
1999. The veteran experiences difficulty sleeping, an
inability to work for more than a few days at a time, and
impaired impulse control (such as unprovoked irritability
with periods of violence). The Board finds the veteran's
wife's statements regarding his irritability and impaired
impulse control to be credible. The GAF score of 45 assigned
to the veteran represents serious symptoms. The veteran does
not exhibit some of the criteria for a 70 percent rating,
i.e. his speech is logical and coherent, he is not spatially
disoriented, his appearance and hygiene are at least
adequate, and he does not exhibit continuous panic or
depression. However, considering his relatively low GAF
score and other psychiatric symptomatology, the criteria for
a 70 percent evaluation are nearly approximated.
There is no competent evidence however, suggesting that a 100
percent disability rating is warranted. There is no gross
impairment in thought processes or communication. The
veteran is able to communicate effectively. There is no
evidence of delusions or hallucinations. While the veteran
does exhibit impaired impulse control and isolated violence,
there is no evidence that he poses a persistent danger of
hurting himself or others. The veteran is able to maintain
adequate personal hygiene, the veteran is oriented to time
and place, and exhibits no substantial memory loss for names
of close relatives, his own occupation, or his own name.
While the inability to keep a job is consistent with the GAF
of 45, the examiners have not suggested that the veteran's
PTSD provides total industrial impairment. The criteria for
a higher rating are not approximated.
Therefore, the Board finds that the evidence supports a
disability rating of 70 percent, and no higher, for the
appellant's service-connected PTSD.
ORDER
Entitlement to a disability rating for PTSD in excess of 70
percent is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals